In Thing v. La Chusa, our Supreme Court narrowed its holding in Dillon v. Legg and limited the scope of claims for negligent infliction of emotional distress (NIED).*fn1 Its avowed purpose in doing so was to "avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread...." (Thing, supra, at p. 664.) In this action for NIED purportedly arising from medical malpractice, appellants seek to expand the scope of liability which our Supreme Court sought to limit in Thing. They allege that, at the time of their mother's post-operative treatment, they were "experienced in the medical field and understood and appreciated the dangers faced by their mother" in the event remedial action was not taken. We agree with the trial court that this allegation is insufficient to establish that appellants knew and appreciated the medical circumstances affecting their mother. (Bird v. Saenz (2002) 28 Cal.4th 910, 917-918 (Bird).) As we shall explain, their complaint failed to satisfy the second prong of Thing's three-prong test for liability based on a theory of NIED.

Jessica Morton and Holly Brooks appeal from the judgment of dismissal entered after the trial court sustained a demurrer to their cause of action for NIED. We affirm.

Factual and Procedural Background

Appellants' mother underwent "a sigmoid colon resection" for recurrent diverticulitis and "bilateral salpingo-oophorectomy" at Thousand Oaks Surgical Hospital ("hospital"). During the surgery, her bowel was nicked. In the days following the surgery, with her family at her hospital bedside, the mother's condition worsened, and she fell into a coma. The mother later recovered and was released from the hospital.

Appellants, their mother, and their father filed a complaint against the hospital and the mother's physicians. The mother alleged a cause of action for medical negligence. Her husband alleged a cause of action for loss of consortium. Appellants alleged a cause of action for NIED. Here, we are concerned only with the daughters' allegations.

Appellants were not present during the surgery and concede they cannot make a claim of NIED arising from it. Rather, they focus on the period of post-surgical recovery. They claim it was during this time that a second episode of malpractice occurred. Appellants allege that the physicians and hospital staff "negligently and carelessly... failed to respond to signs and symptoms of a bowel leak or perforation and post-surgical sepsis." They allege they saw "their mother deteriorate, suffering from signs and symptoms of peritonitis," and "beseeched" the hospital physicians and employees to "obtain a surgical consult and conduct additional tests on their mother as [she] was physically deteriorating, not making urine, unable to breathe, sweating, and becoming confused." They allege they "are experienced in the medical field and understood and appreciated the dangers faced by their mother in the event no curative action was taken." They allege awareness "that their mother was suffering and deteriorating as a result of Defendants' medical neglect, but were unable to do anything but plea[d] with Defendants to respond to their mother's needs." They allege they "developed severe depression, anxiety and emotional distress as a result of having witnessed the ongoing deterioration of their mother's health due to medical inattention, despite their continued pleas for assistance on her behalf."

The hospital demurred on the ground that the facts alleged in the complaint did not satisfy the elements of an NIED claim under Thing. Specifically, the hospital asserted that appellants had failed to allege facts showing they were present at the scene of the injury-producing event when it occurred and that they were contemporaneously aware it was causing injury to their mother. The hospital argued that where only the victim's suffering is observed without actual observation of the event that allegedly caused the suffering, there is no recovery for NIED. The hospital added that appellants, as laypersons, could not have perceived its alleged failure to diagnose and treat the peritonitis. Finally, the hospital argued appellants could not amend their cause of action to satisfy the requisite elements of an NIED claim and urged the court to sustain the demurrer without leave to amend.

In opposition, appellants acknowledged they did not witness their mother's surgery during which her bowel was perforated, but maintained that this did not preclude them from stating a cause of action for NIED. They argued there were "two injury-producing events." The first was the surgical damage to their mother's colon, while the second was "defendants' post-operative failure to recognize and respond to their mother's steadily worsening condition, and dismissing and ignoring [their] requests and pleas for medical intervention." Relying upon Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa) and Bird, appellants, without elaboration, argued that their "experience in the medical field" distinguished them from the typical layperson unable to understand the significance of post-surgical medical events.

Appellants argued that with their medical experience, they "did have reason to know that their mother was suffering post-operatively, and did have reason to know that the failure of defendants to respond and react to the signs and symptoms of peritonitis was causing her harm."

In reply, the hospital pointed out that appellants did not allege what type of "medical experience" they possessed above and beyond that of a layperson which enabled them to believe their mother was deteriorating as a result of medical neglect. The hospital argued appellants were relying upon the postoperative effects of an already existing injury which they concede they did not witness.

The trial court sustained the demurrer, reasoning that appellants were not present at the injury-producing event, nor were they aware that the event was causing injury to their mother. The court stated: "[H]ere plaintiff daughters claim they were nevertheless present at the time of the alleged post-operative failures to treat (creating a tort recovery for them but not for non-medical expert relatives), putting us in a 'Twilight Zone' of special treatment that seems contrary to sound public policy. What about the self-proclaimed expert who has studied up on Wikipedia? What about the med school drop-out? What about the phlebotomist who works at a hospital and has some sense of proper treatment but no formal training? Whose relatives can state a cause of action and whose cannot? The daughters' theory is not a ...

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